Aug. 5, 2014 – In two separate cases challenging a law that requires photo identification to vote, a Wisconsin Supreme Court majority has ruled that the law does not unconstitutionally burden voters and is a reasonable regulation on elections.

In Milwaukee Branch of the NAACP v. Walker, 2014 WI 98 (July 31, 2014), a 4-3 majority ruled that the inconvenience associated with obtaining photo ID in order to vote “are not undue burdens on the right to vote and do not render the law invalid.”

Justice Patience Roggensack wrote both majority opinions, joined by Justices Michael Gableman, David Prosser, and Annette Ziegler in both cases. Justice Patrick Crooks concurred in League of Women Voters, but dissented in NAACP. Chief Justice Shirley Abrahamson and Justice Ann Walsh Bradley dissented in both cases.

Although a majority has upheld the photo ID law, 2011 Wisconsin Act 23, a federal case is still pending and the law remains invalid for now. In April, Judge Lynn Adelman of the U.S. District Court for the Eastern District of Wisconsin ruled that Act 23 places undue burdens on voters, especially low-income voters, and violates the Voting Rights Act.

The federal case is pending review by the U.S. Court of Appeals for the Seventh Circuit. It’s unclear whether that court will make a decision by the fall election cycle.

League of Women Voters v. Walker

Act 23 requires a voter to present one of nine forms of photo ID to polling officials in order to vote. The League of Women Voters sued, arguing that the photo ID requirement violates Article III of the Wisconsin Constitution.

Section 1 of Article III defines the qualifications to vote. Persons must be U.S. citizens, at least 18 years of age, and a resident of the election district. Section 2 of Article III allows the Wisconsin Legislature to “implement” the qualifications by enacting laws that “define residency” and “provide for the registration of electors,” among others.

The plaintiffs said the photo ID requirement creates an “additional elector qualification” not authorized by the Wisconsin Constitution. In addition, the plaintiffs argued that requiring voter ID is not reasonable, because it creates undue burdens on voters.

Dane County Circuit Court Judge Richard Niess ruled that Act 23 is unconstitutional and enjoined the Wisconsin Government Accountability Board from enforcing the law. Ultimately, a Wisconsin Appeals Court reversed that decision in May 2013.

Last week, the supreme court majority concluded that requiring photo ID “is not an elector qualification in addition to those set out in Article III, Section 1 … but rather, it is a mode of identifying those who possess constitutionally required qualifications.”

The majority noted that the Legislature may pass laws related to voter registration, and “[i]dentification of registered voters by a government-issued photo identification is the mode of identification that the legislature has chosen.”

In addition, the majority rejected the argument that Act 23 is unreasonable and places unconstitutional burdens on voters.

“Act 23’s requirement to present photo identification is a reasonable regulation that could improve and modernize election procedures, safeguard voter confidence in the outcome of elections and deter voter fraud,” Justice Roggensack wrote.

Justice Patrick Crooks wrote a concurring opinion. He wrote separately to note that the law requires the conclusion reached, whether or not it is good policy.

“The question we must answer is not whether the photo identification law is good policy, but whether we can say beyond a reasonable doubt that Act 23 violates the Wisconsin Constitution on any of the grounds claimed by these plaintiffs,” Crooks wrote.

Crooks said the plaintiffs failed to show beyond a reasonable doubt that Act 23 is unconstitutional. “I can reach no other conclusion than to uphold Act 23 based on the purely facial challenge here,” wrote Crooks, who will not seek reelection next year.

Chief Justice Abrahamson dissented, joined by Justice Bradley. “The State may require verification of the identity of the voter, but Act 23 severely restricts and limits the form of identification that enables a qualified voter to cast a ballot,” Abrahamson wrote.

The chief justice’s 41- page dissent said the majority opinions on Wisconsin voter ID law follow not James Madison, but Jim Crow, “the name typically used to refer to repressive laws used to restrict rights, including the right to vote, of African-Americans.”

Milwaukee Branch of the NAACP v. Walker

In this case, the 4-3 majority concluded that “the burdens of time and inconvenience associated with obtaining Act-23 acceptable photo identification are not undue burdens on the right to vote and do not render the law invalid.”

The majority noted that under Act 23, the Wisconsin Department of Transportation may not charge a fee for identification cards that are obtained for the purpose of voting.

However, the plaintiffs had produced evidence that obtaining a photo ID requires supporting documents, such as birth certificates, and those documents require a fee.

To resolve this conflict, the majority proclaimed that DMV administrators must use discretion to issue photo ID for voting purposes “without requiring documents for which an elector must pay a fee to a government agency,” Justice Roggensack explained.

This “saving construction” relieves any undue burden on voters, the majority noted. Without this burden, the majority concluded that Act 23 is not unconstitutional because it is “reasonably related to the State’s significant interests” in protecting the integrity of the election process, preventing voter fraud, and maintaining public confidence in elections.

“As inconvenient as it may be, photo identification is here to stay,” wrote Justice Roggensack, noting that casting ballots can be an inconvenient experience in itself, with long lines and waiting periods. “It is a fact of life to which we all have to adjust.”

She noted that the plaintiff organizations, the NAACP and Voces de la Frontera are capable organizations and “will know what documentation DMV requires to issue DOT photo identification cards for voting and will work to assure members of the African-American and Latino communities will be well-prepared for their trips to the DMV.”

Justice Patrick Crooks, wrote a 47-page dissent, joined by Chief Justice Abrahamson and Justice Bradley.

In this case, Crooks said “Act 23’s photo identification requirements severely burden eligible voters without being narrowly tailored to achieve the state’s compelling interests of reducing voter fraud and increasing voter confidence in the outcomes of elections.”

The court distinguished the voter ID law of Indiana, which was upheld by the U.S. Supreme Court. Crooks said the Indiana law is not as stringent as Wisconsin’s law, in part because Indiana’s law provides for an “affidavit exception” to the ID requirement.

Justice Crooks also concluded that the majority’s “saving construction” – requiring DMV administrators to use discretion by issuing ID’s without requiring supporting documents that require a fee – did not save Act 23 from its unconstitutional status.

“[T]he majority opinion’s remedy appears to leave in place the discretion of DMV administrators to issue or refuse to issue Act-23 compliant identification where a fee is required for supporting documents,” Justice Crooks noted.

“If the majority leaves in place the discretion of DMV administrators to issue exceptions to those burdened by the cost of obtaining underlying documentation, then it fails to guarantee constitutional protections against poll taxes,” Crooks continued.

On the other hand, Crooks noted that the supreme court does not have the authority to “require” that DMV administrators issue ID’s to those who are burdened by the cost.

“I urge the legislature to take action to cure the unconstitutionality of Act 23,” he wrote. “Without such action, the remedy crafted by the majority leaves Act 23 unconstitutional.”

Chief Justice Abrahamson wrote a brief and separate dissent. She noted that in reviewing legislation that regulates voting rights, a specific standard of review applies.

The State must make a “’particular, factual showing that threats to its interests outweigh the particular impediments it has imposed,’” she wrote, citing a dissent in Crawford v. Marion Cnty. Election Bd., a 2008 U.S. Supreme Court case. “’The State has made no such justification here, and as to some aspects of its law, it has hardly even tried.’”